Q: Our graduation ceremonies are this weekend and we have a student-elected speaker slated to give the introduction. She has asked if she can provide a brief prayer as part of her remarks. Is this allowable?
A: Yes, but only if the prayer is initiated and led by the student.
The Fifth Circuit Court has upheld a student representative’s right to deliver “nonsectarian, non-proselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies.” Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir. 1992). In the Jones case, the school district allowed the student body to vote on the graduation invocation content. The students elected to have a nonsectarian prayer be given at the beginning of the event, and elected a representative to provide the prayer. The critical distinction that the Court made between this type of religious speech and other religious speech at school-sponsored events, was that the decision to include a prayer in the event was completely student-initiated and student led. Here, because the program simply says "introduction" and the content of the student’s message is purely up to him or her, the student’s speech is not attributable to the district and, thus, does not violate the Establishment Clause.
Before printing your programs, be sure to review your district’s board policy FNA (LEGAL) and (LOCAL) regarding student speech at graduation. Generally, the policy states that a student’s expression on an otherwise permissible subject may not be excluded from a limited public forum (e.g., graduation remarks) simply because the subject “is expressed from a religious viewpoint.” Importantly, FNA (LEGAL) provides that a verbal or written disclaimer must be provided to state that the student’s speech does not reflect the endorsement, sponsorship, position or expression of the district. Your FNA (LOCAL) policy may give more specific instructions regarding a disclaimer to be placed in your graduation programs. Such disclaimers often include a statement that the student speakers were selected based on neutral criteria and the content of their message is the private expression of the student and does not reflect any position of the District, school board, administration or employees. It is also important to ensure that your graduation programs do not indicate that the student’s message will be a “prayer” or “invocation,” rather the program should track the terms used in your FNA policy (e.g., “Opening/Closing Remarks”). This avoids the conclusion that the school district has made the decision that prayer will be a part of the program.